There are many reasons why copyright law as we know it is fundamentally ill-suited for the networked age, and why it will (if we are fortunate, and smart) look very, very different 10 or 20 years from now. I've commented on this many times in the past here on the VC (and will keep doing so, unless and until Eugene tells me to shut up).

Here's a nice recent illustration of one of copyright's fundamental problems.

Over the past few weeks, there has been a proliferation of videos on Youtube made using Microsoft's recently-released "Songsmith" software. Songsmith lets you input music into your computer — by singing and/or playing your guitar into your mic, or feeding in a pre-recorded track — and then the software "analyzes" the music and adds backing tracks matching the "genre" of the music you've fed in. It didn't take long for people to take control of the software's capabilities and to begin feeding in classic songs and re-working them, with sometimes spectacular results:

Both authored by 'azz10,' who, by the looks of things, seems to be pretty gifted at this sort of thing.

That there is copyright infringement here is almost beyond dispute. Let me put it this way: as a copyright lawyer myself, I would not want to be defending azz10's side in an infringement suit. That, alone, is troubling — copyright is supposed to promote creativity, and here's a veritable explosion of creativity — hundreds of thousands of these videos have been posted to date, some great, some awful, many interesting and expressive — and copyright (and only copyright) is standing squarely in the way.

But my point here is different. One of the things that makes copyright so ill-suited to the networked age is that it doesn't scale. Here's what I mean. If azz10 walked into my office and said: "I'd like to hire you to clear copyright on this work I have created; find out who I have to pay royalties to, and get me the rights," I would not be able to complete that task (and no copyright lawyer worth his/her salt could complete that task) in less than 4 or 5 hours of work, and possibly a good deal more. Take the "I Heard it Through the Grapevine" video. Some of the questions I will have to answer in order to do this work competently:

Who owns the rights to the "audiovisual work" portraying the Marvin Gaye performance?

Who owns the rights to the underlying "sound recording"?

Who owns the rights to the underlying "musical work" (i.e., the song itself)> (under copyright law, this is a separate copyrighted work, and can be owned separately from either of the foregoing)

What kind of royalty do I need to pay, i.e. am I paying a royalty for "reproducing" these works, or for "performing" them? Or "publicly displaying" them? Or "transmitting them by digital audio transmission"? Each of these is plausible, none is certain, and it makes an enormous difference in the amount of the royalty and the identity of the persons to whom the royalty is owed (i.e., if it's a "performance," different copyrights are involved than if it's not).

What about Microsoft? Do I owe them a royalty, inasmuch as I've used some of their "genre" tracks in my video?

Some of these involve chasing down facts that may be hard to uncover (like who owns the various copyrights). Others involve difficult questions of law. I'll need to examine some documents (copyright assignments, possibly; the language of the Songsmith license, certainly; things like that). I've done this sort of work, for paying clients; it's not impossible, but it does take some time. The point: it takes orders of magnitude more time to do the copyright clearances than it does to create the work. Think about it — it could well have taken azz10 15 minutes to synch up these tracks on Songsmith — and easily 10 or 100 times more work would be required to do so in compliance with copyright law.

That is an absurd state of affairs. Multiply the waste involved by 100,000 for each of the Songsmith videos posted on Youtube. And then mulitply that by 1,000,000, for each of the Songsmith videos created and not posted on Youtube.

That's what I mean by a failure to scale. This is, remember, all supposed to be about encouraging creative work. In the old days, with a (much) smaller number of relevant events needing copyright protection, the ratio of creative work to law-compliance work may have been reasonable. But it is reasonable no longer.

How we figure out how to change all this is another story. [I try to tell that one in my book]

On a tangential note, it seems to me very possible that "azz10" put up that video on Youtube to show the limitations of Songsmith, not its capabilities. The accompaniment generated by Songsmith is terrible; the chord changes are all wrong. This isn't to say that the original chord changes are the only ones permissible and that nobody could come up with a different set, but there's an art and a science to doing this and making it sound right, and on the evidence of this song, Songsmith isn't up to it.

I think the nature of parody is also at issue. To whom does it have to be seen as a parody? Although the linked songs probably do not approach it very closely, one possible avenue of parody is "what if world class musicians were replaced by robots?".

Btw, I think the version of "Shock the Monkey" is effective:
http://www.youtube.com/watch?v=2-wgVgrWg2g

1) Perhaps the morally relevant question is not how azz100s's creative effort would compare to that of his lawyer, but how it compares to those of the songwriters, musicians and Microsoft programmers whose work makes up the bulk of the clip.

2) Your argument would be more persuasive as an argument for a more efficient clearing mechanism than as one for fundamental changes to copyright law.

Although the linked songs probably do not approach it very closely, one possible avenue of parody is "what if world class musicians were replaced by robots?".

Actually, the musical performances of some long deceased world class musicians can still (and only) be heard through the medium of robot performance, or modern recordings of robot performance. World class performers cut piano rolls decades before analogue audio recording developed good audio fidelity. The best recording pianos captured most every nuance of the performance. Today, we can hear the performances of these artists through "robot" player pianos.

I think the nature of parody is also at issue. To whom does it have to be seen as a parody?

good question -- as is the question of what is being parodied. In the case of both Sgt Pepper and Grapevine, it appears that the software itself is the object of parody. What is most striking about both these clips is how inapt what Songsmith has come up with.

Both these creations "work", because they incorporate the appropriation of the musical style influenced the original work. Is this parody of the appropriation by The Police and Oasis? Or is it simply theft?

1. It would be nice to be able to look over Mr. Post's proposals without being directed to Amazon.

2. It brought a smile to my face to note Amazon's shilling for Kindle, i.e., buy an ebook version now and start listening to it.

3. Pre-internet the same amount of work would have had to be undertaken as post-internet in order to "clear rights". The rights have not changed to any appreciable degree, but only the number of potentially infringing uses. All this does make me wonder if copyright law was more "on the mark" pre-1978? There is much to commend the formalities that used to be a part of our copyright system.

I think the nature of parody is also at issue. To whom does it have to be seen as a parody? Although the linked songs probably do not approach it very closely, one possible avenue of parody is "what if world class musicians were replaced by robots?".

Uhh, isn't this more satire? Then again I only have a vague grasp of the distinction.

copyright is supposed to promote creativity, and here's a veritable explosion of creativity

That is a derivative benefit of copyright. Its fundamental purpose is to protect the property right of a creator. In many cases, the purpose of copyright is to deter creativity -- if that "creativity" entails a violation of the owner's property rights.

Your "failure-to-scale" complaint amounts to: "Gee, it's expensive and time consuming to get the necessary permissions, so let me just steal the property."

As a copyright attorney, you must realize that such complexities are not unique to the situation you mentioned. See for example the copyright tribulations involved in producing a biographical documentary.

Javert, the Copyright Clause states "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I think that makes it very explicit that Congress has the power to grant copyright in order "to promote the Progress of Science and useful Arts". As I use the American language, that's archaic for "copyright is supposed to promote creativity".

The internet decreases the cost of distribution hugely. Previously azz10 would either have been performing only for friends and family which (at least pragmatically) wouldn't count as performing or distributing the work or he would have been so popular he would have gotten a record deal (or perhaps in the legally sketchy but practically unproblematic situation of playing at local bars). If he got a record deal, appeared in a movie or otherwise got distributed the cost of distribution would overwhelm the cost of dealing with the copyright.

In other words before 1978 there was little loss of utility since any use that practically required clearing the copyright had a cost that dwarfed the cost of clearing the rights. Thus the transaction costs were only a small percentage of the cost of any use and thus caused only a small loss of utility.

--------

I'd note that the problem we face is much larger than merely reducing the cost of discovering who owns the rights. We could fix this problem with a minor legislative patch establishing an official online database and clarifying some of the categories.

What is much harder to fix is the fact that frequently it is going to be in the copyright holder's interest to have a defacto policy of charging a substantial (say at least a hundred dollars) amount to use their work in a freely distributed work. Even if the holder of the copyright is sympathetic to individuals like azz10 they probably want to get paid if Viacom wants to use their song for a 'viral' marketing campaign or someone (say a political candidate) wants to use it in an advertisement.

If the copyright holder has a blanket policy of allowing freely distributed derivative works after the payment of some de minimus amount then 'corporate' uses are going to sneak in under this scheme and deprive them of their payday. Thus the incentives for the copyright holder strongly disfavor such a blanket policy. Unfortunately this means that an actual human will have to consider each request to use their copyrighted work in a freely distributed online video individually or simply have a high minimal cost.

In short, even while the rights holder would probably favor granting azz10 a license for this work for free or at least very cheaply the cost of sorting works like this from marketing campaigns will be substantially larger than the royalty that azz10 might be willing to pay so people can see him on youtube. Fixing this will require radical overhaul of the copyright system.

Isn't this an old problem that is so much worse because of technology? I listen to jazz from a local university and have long been intrigued by the way some musicians can weave a phrase from some popular standard into whatever they are playing. Do those several notes from a clearly identifiable different work constitute infringement? How about fair use?
Then again, isn't simply a variant on the artistic interpretation that occurs when one musician "covers" the music of another?

I thought the Songsmith version of Sgt. Pepper was just awful. The Songsmith Latin twist on "Roxanne" by the Police was mildly interesting, but not something I'd listen to again. The Songsmith versions of Marvin Gaye, both "I Heard It Through the Grapevine" and "What's Goin' On", were truest to the original, but very pedestrian (at best) imitations -- if Marvin Gaye had recorded these songs in that way, they might never have released, and certainly would not have sold big. All in all, I think what these videos show is the severe limitations of "programmed" creativity. I don't see a real threat to copyright until there are significant improvements in "programmed" creativity, at which point, considering the hours of programming work that will be necessary, the balance between work on the creative side and work on the copyright law side will get a lot closer to the historical norm.

Uhh, isn't this more satire? Then again I only have a vague grasp of the distinction.

IANAL, but my impression is that parody is a broader topic than satire. Parody may use satire, but is not limited to satire..

In any case, Webster's dictionary defines parody as either
"a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule"
or
"a feeble or ridiculous imitation"

If the copyright holder has a blanket policy of allowing freely distributed derivative works after the payment of some de minimus amount then 'corporate' uses are going to sneak in under this scheme and deprive them of their payday. ...

I generally agree with your gloss of production and distribution costs versus copyright holder search costs. But I'm not sure I understand why some copyright holders would even want to have such a blanket policy. I realize that those who turn over their royalty collection rights to ASCAP/BMI/SESAC/RIAA will have a blanket policy, since that's what those organizations do.

If I held a registered copyright, I would have no difficulty saying "If I like your use for my work, or your attitude, I'll charge you nothing or maybe a nickel. But if I don't like it, I'll charge you one arm, one leg and your firstborn. You have to ask first." Or, "If you are a charitable nonprofit entity and you are distributing your derivative work for free, then I won't charge a fee. But if you are a profitmaking entity, I will charge you an arm and a leg." Any profitmaking operation that distributed a derivative work without asking would face a lawsuit. But enforcement costs are no different than if I charged a blanket fee and someone didn't pay.

Why would any copyright holding artist find it problematic to have such policies? It's not as if the number of inquiries would be so huge that no human could respond to them.

No, the purpose of patent and copyright laws is indeed enshrined in the constitution as "To promote the progress of science and the useful arts"

I know that but it's irrelevant to my point. IP is a type of property, and the fundamental purpose of a copyright (as with a patent) is to protect the producer's right to that property. The "promote" point speaks to the utilitarian purposes of a copyright, but not to the basic right. And this is preeminently a rights issue.

Javert,
I don't recall the Constitution even mentioning what you seem to think is the fundamental purpose of copy monopoly. On the other hand it does explicitly state that one of the purposes (presumably the primary one) is to "promote the progress of science and useful arts"

Not everyone believes copy monopoly is a right. One reason is that the vast majority of most creations is due, not to the supposed original author, but rather to many contributors before. Newton said that if he could see farther than most, it was because he stood on the shoulders of giants (though that was science, I think it applies to the arts as well). Most musical works for example, are in debt to the inventors of musical theory, the inventors of the instruments, the originators of the style, and sometimes even to the publicly funded school which taught the musician how to play. It seems likely if you took a genius musician of today and transported him back to a time in history before he had a chance to absorb such contributions, he wouldn't be able to produce anything worth nearly as much.

Although there are plenty of exceptions, the basic principle of American government is freedom. If you are going to restrict my freedom to use my computer or network connection or photocopier or printing press however I want, then you need a good justification. Protecting your selfish profit interest in the tiny contribution you made to your creative work isn't enough for many people to join in the forceful restriction of other people's freedom. But promoting the creation of valuable works is something that does justify the imposition of copy monopoly, or at least makes that infringement of freedom tolerable.

Unfortunately rights holders have taken advantage of the public's lack of attention to copy monopoly, to get the legislature to approve extensions of copy monopoly far beyond the people's original authorization for a "limited time". Of course the current copy monopoly term, which can extend to more than 150 years, is "limited" in the mathematical sense, but then a period of a trillion years would be "limited" in a mathematical sense as well. 150 years is beyond the lifetime of every normal human being. That's practically forever as far as the people are concerned. And since no creator would decide not to create for lack income that might accrue, say, more than 50 years in the future, such copy monopoly terms cannot be justified as promoting creation. There is a massive amount of information buried in libraries, that doesn't even benefit its authors much, which could contribute hugely to humanity if its copy monopoly could be released.

I am constantly amazed by the disregard of property rights at a supposedly libertarian blog, once digital technology enters the picture. Are you guys sure you're not utilitarians, socialists or Japanese?

Sheesh.

The relevant word in the constitution is 'useful.' The idea was to encourage the practical development of creative ideas so that the public would have use of them. I have been reading the essays of C. W. Marsh, the inventor of the harvester. He certainly was not under any illusion that the problem was a shortage of creativity. The difficulty, as he saw it, was to develop the abundant ideas. In his review of other inventors' careers (in R.L. Ardrey's 'American Agricultural Implements'), he often sums up the result: 'died poor.'

One example among many: 'An evolution had been accomplished, and although the thing turned out was rude and imperfect, it had the new form, to which the inventor and others soon gave more symmetry and better action. Mr. Wheeler seems also to have had a clearly defined purpose, viz., to develop a practical marketable mower upon the new plan, for he continued to make improvements, to take out patents therefor, to build machines and to push their introduction until the great mower business of the country had become fully established upon this basis by himself and others working in the same general direction.'

Heck, I'd like to know if Songsmith is illegal. Songsmith creates its chord progressions usting a statistical model derived from a large sample of songs of various genres. Did Microsoft license those songs for that purpose? How would you license songs for such a purpose?

I know that but it's irrelevant to my point. IP is a type of property, and the fundamental purpose of a copyright (as with a patent) is to protect the producer's right to that property.

That is clearly inconsistent with the text of the Constitution. It also doesn't address where this "right" derives, since a natural rights basis for copyright (and more-so, patent) is not clear - or for that matter other IP. Is a right really something that can be bought from Congress, as the absurd extension of Copyright has? Furthermore, if it is a right, how can it limited in duration? It isn't a right, it is a constitutionally enumerated privilege.

As "Reasoner" argues, a more important issue is the extremely long lifetimes of this "right." The current copyright law duration is clearly against the intent of Copyright protection as described in the Constitution.

I know that but it's irrelevant to my point. IP is a type of property, and the fundamental purpose of a copyright (as with a patent) is to protect the producer's right to that property. The "promote" point speaks to the utilitarian purposes of a copyright, but not to the basic right. And this is preeminently a rights issue.

Absolutely not. Intellectual property is not like personal or real property: intellectual property is non-rivalrous. The arguments for intellectual property rights are wholly different from arguments for all other private property rights for that reason.

Thomas Jefferson said it better than I can:

That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

You do not have natural rights in intellectual property. The only reason for legal protections of IP is utilitarian: to protect the work of the distributors and publishers and manufacturers.

But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.

A better example of the negative consequences of copyright law on creativity is this very original cartoon "Sita Sings the Blues" by one Nina Paley. It cannot find a distributor because of copyright problems. The cartoon is based on Ramayana; apparently there are complicated legal problems associated with the extensive use of old jazz songs in the cartoon.

Let's say azz10 does secure non-exclusive rights to the copyrighted materials for the purpose of producing these videos, what is to stop me from making an identical or near-identical video and similarly securing rights in the work?

Presumably azz10 can't copyright the audio portion of the video. S/he has simply subjected a previous work not owned by himself to an algorithm also not owned by himself. He can't copyright the visual portion of the video, since that is wholly owned by someone else. So what is left is pairing the algorithmically altered audio to the visuals, but even that has an aspect of obviousness to it: start the singing at the same time in both audio and visual.

In short, azz10 has done very real work, but that work appears to be of a technical nature, not a creative nature.

I would analogize this to creating an audiobook by recording your Kindle 2. What prevents anyone else from "creating" the exact same work and having just as many rights in it as you do?

The property rights theory of IP law breaks immediately when you consider that no other example of property ownership expires and reverts to the public within a specific timeframe. If literal ownership of IP is the principle at stake, then that ownership should be perpetual until transferred, just as with any other sort of ownership.

The fact that intellectual property rights expire means two things: that they are not natural rights, and that it's recognized that perpetuating the monopoly beyond a certain point causes negative social utility. In the book Against Intellectual Monopoly, the authors make a compelling case that the social utility of IP law is negative regardless of how quickly the monopoly privileges expire; they argue (and convincingly document) that even in the case of drug research, the rent seeking behaviors inspired by IP law cause more negative effects than positive.

IP is not about natural rights in property; it's a creature of statute which infringes on the liberty of others to do as they think best with physical objects which they legitimately own. If I have purchased ink and paper with money earned honestly, the only reasonable libertarian stance is that I can put that ink on that paper in any way I want, and then sell it to anyone with whom I can reach a mutually satisfactory agreement. To tell me that I may not do as I wish with my ink and my paper is to reduce liberty, not to increase it.

If I steal your radio, you no longer have a radio. If I copy your book, you still have your book. That's where libertarian theory draws the line: I have not deprived you of any liberty through my exercise of my own. It's true that if you can infringe on my liberty to copy your book, that you may gain profits you could not otherwise have gained. It's also true that if you can infringe on the liberty of the slaves working your fields, that you may gain profits you could not otherwise have gained. The fact that it is personally profitable to deprive others of their liberty does not mean that you are naturally entitled to do so.

Moreover, if IP were based on a theory of natural rights, it would apply regardless of culture, law, or timing. If I have a wife and you rape or murder her, I will intuitively and obviously be aggrieved, no matter when or where I grew up. If I have belongings which you destroy or steal, the same. But if I as a caveman invent fire and then see that you have lit a fire as well without asking my permission or offering me payment, it doesn't feel intuitively obvious in the same fashion that I will be similarly aggrieved.

Check out the history of the Amen Break for another interesting take on copyright. The same issues with Songsmith have been ongoing for a while: there's a huge amount of creativity and artistic progress which would be destroyed if people couldn't use others' work as a springboard.

Isn't this true of everything though? If my neighbor needs a ride to the airport, and I offer to drive him for $20, wouldn't clearing this legally take way longer than it would take me to drive him to the airport? If I want to sell lemonade to passersby in my front yard, doesn't the same apply?

I don't see that copyright is any different from any other law in this regard. It fails in small cases, so people ignore it in small cases, and that kind of works for everyone.

That's not true. It's called "substitute products." And as the history of invention has shown, they appear very quickly -- assuming that there are legal protections for their possession and distribution (i.e., profit).

If literal ownership of IP is the principle at stake, then that ownership should be perpetual until transferred, just as with any other sort of ownership.

Perpetuity is not the only type of property. And in fact there are cases in which it doesn't even apply to land et al. -- e.g., abandonment.

Some of you are mixing two different issues: 1) the rights/legal status of IP, and 2) the tenures of copyright and patents. I have no view on the details of 2) other than that the term should be a reasonable time such that the creator can profit from the work.

One reason is that the vast majority of most creations is due, not to the supposed original author, but rather to many contributors before.

You cannot use a fact of reality -- that the body of human knowledge grows and that we benefit from previous discoveries -- to justify abrogating a right. By that reasoning, there'd be no rights, at all -- no right to land, a house, computer. After all, your improvement and use of them depends, ultimately, on past knowledge and discoveries.

The origin of the right to IP is identical to that for any right (such as the right to property) -- that an individual (or individuals, in the case of joint ventures) has used his mind, efforts, time and resources to create the IP.

If I held a registered copyright, I would have no difficulty saying "If I like your use for my work, or your attitude, I'll charge you nothing or maybe a nickel. But if I don't like it, I'll charge you one arm, one leg and your firstborn. You have to ask first." Or, "If you are a charitable nonprofit entity and you are distributing your derivative work for free, then I won't charge a fee. But if you are a profitmaking entity, I will charge you an arm and a leg." Any profitmaking operation that distributed a derivative work without asking would face a lawsuit. But enforcement costs are no different than if I charged a blanket fee and someone didn't pay.

Why would any copyright holding artist find it problematic to have such policies? It's not as if the number of inquiries would be so huge that no human could respond to them.

Well currently you probably still could spend a bunch of time every day watching every youtube video someone wants to post but if your work is popular that means you spend a bunch of time watching dumb videos most of which are probably in languages you don't understand. You want to have some kind of blanket policy for the same reason that you use automated spam filtering: Even if each user pays you $5 or some other small amount it just isn't worth your time to watch all those bad youtube clips or read the bad poetry on teen websites incorporating your lyrics. This is a problem that is only going to get worse as more people become comfortable authoring digital content.

Now if it didn't require you to sort through all these videos you would probably want people to reuse your material in this way. Even if you don't recieve any compensation these uses only increase your popularity and likely spur higher sales of your original work. At $5 a shot the upside is even more clear.

One might think that you could somehow create a licensce that only allows this kind of amateur work but I think it would prove virtually impossible to carve out the category. Ultimately this is just one example of the broader inefficency of IP laws and copyright in particular. Since the cost of making extra units of the good is zero anytime we deny someone (assuming they aren't producing a substitute for the original) access to it merely because it isn't worth the market rate to them it's a pure loss (Pareto inefficient).

Basically copyright is the limiting case of property rights where the marginal cost goes to zero and that makes everything blow up. Thus the inefficiencies we wave away when showing the market efficiently distributes cars or property become the dominate effect.

In my opinion the first thing we need to do is eliminate this ridiculous notion that the artist deserves whatever amount the market is willing to pay him for licenses. Yes, the author should be compensated but what the market will bear for a license is only a stab in the dark at what that amount should be. We certainly have no reason to suspect the market price has much to do with the optimal incentive to induce the creation of this kind of work. I highly doubt that doubling or halving the payouts for top 40 singles would have much effect at all on the number of people practicing in their garage. Nor do we have any reason to believe it accurately tracks their contribution to society or what they morally deserve. We would only be a hair worse off if we replaced the best bands/authors/etc.. with ones who fell just a hair shy (imagine we had half the population) yet the difference in payouts is astronomical.

Once we realize that copyright is just a wild guess at the correct amount of compensation to give particular authors maybe we can then reasonably consider other schemes to compensate them. In particular I think we need some kind of collective compensation regime where either via taxation or by subscription to clearinghouses we contribute some fixed amount per year to access, use, and redistribute creative content and then divy up that money amoung the authors in some fashion proportional to their influence/popularity/usefulness.

The hard problem is figuring out how to prevent politicians from meddling in the scheme once copyright is no longer viewed as the same kind of thing as other sorts of ownership. I fear that politicians would try to deny compensation to authors of porn, offensive literature, violent games and music and other unpopular media and I don't know how to fix the problem.

I think a good way to get copyrighted works back into the public domain would be to impose large copyright fees on any work more than 10 years old. A fee of a few thousand dollars a year to maintain copyright wouldn't be a big problem for creators of works like encyclopedias, who think long term about their investments, but it would return the vast majority of little used works to the public domain. It would allow libraries to bring most of their book collections online in full text. It might be politically feasible since it would be a new source of revenue to government.

You cannot use a fact of reality — that the body of human knowledge grows and that we benefit from previous discoveries — to justify abrogating a right.

You cannot use a fact of reality — that some people profit if the government restricts the liberty of their competitors — to justify abrogating a right. This line of argument doesn't work unless you've already agreed on what is or is not a right.

The origin of the right to IP is identical to that for any right (such as the right to property) — that an individual (or individuals, in the case of joint ventures) has used his mind, efforts, time and resources to create the IP.

No. The theory of property rights is not based solely on labor; they are based on the investment of labor in land. If I imagine that there is an apple tree in the forest, I do not own it. If I find an apple tree in a forest, I do not own it. If I imagine grafting and pruning to improve that tree, I do not own it. When I do graft and prune that tree, increasing its yield, I then own that particular tree (or, for the Georgists, I at least own the increased yield): I have increased the tangible wealth of society by causing there to actually be more apples, and I am entitled to claim those particular apples as my own. It does not follow from that that I may forbid others to improve other apple trees, if I have not invested my own labor in those other trees. To divorce labor from land and say that an idea may be owned separately from the physical substance in which I have expressed my idea requires an entirely separate philosophical theory.

That's not true. It's called "substitute products." And as the history of invention has shown, they appear very quickly -- assuming that there are legal protections for their possession and distribution (i.e., profit).

Do you not understand what rivalry is?

If I watch a television program, that doesn't prevent anyone else from watching the same television program. Therefore it is non-rivalrous.

You have a stilted view of rival product. Standard and common usage is, for example: Netflix offers rival products to those offered by Blockbuster; the implantable lens is a rival product to Lasik; Apple to Microsoft etc, etc.

Actually in terms of property rights and natural rights if you look back to the original justifications by Locke it's pretty clear that copyright/IP is a violation of my rights. It is a rule which allows the government to take from me the work of my own hands merely because it resembles someone else's work (even in patent law if I came up with it independently).

@Crosbie Fitch:

I don't know about even that. Saying that I have a right to privacy is a very different thing than saying I have a property right to my unpublished writings.

In other words if someone violates my privacy and publishes my work without permission do I have some right to stop others from continued publication. I don't see any argument to say that I have some kind of natural right here.

<blockquote>You cannot use a fact of reality — that some people profit if the government restricts the liberty of <b>their competitors</b> — to justify abrogating a right.</blockquote>
If I am Charles Dickens, you are not my "competitor" when you copy my new manuscript without my permission and distribute it of your own accord. You are, simply, a thief. (And despite my love of language as a renowned author, I will countenance none of this infernal parsing of the word "thief" with regard to IP.)

The unique expressions of MY MIND are not yours to reproduce and distribute. It is MY mind, and MY work, and MY time, and you will respect that. This is common moral sense, of course. But this is also still the real world, and the real world still has slimeballs, so this common moral sense has been codified into law to ensure that the slimeballs get the message too: A human being has exclusive rights to the fruits of his own brain. His creativity is not yours to co-opt. Period.

@TruePath, The fact remains that your natural right has been violated. Further distribution of your stolen IP is akin to distribution of your stolen material property.

Unwitting handlers may be required to desist from further distribution/reproduction once informed, but not found as culpable.

Plainly, people cannot unknow illicit knowledge, nor can their freedom of speech be constrained, but unlike mercantile privilege, I believe there would be far more respect in upholding a person's right to privacy - and willingness to oblige in remedying or ceasing any violation.

my favorite example of copyright law out of whack is this email example is saw in Infringement Nation: Copyright Reform and the Law/Norm Gap 2007 Utah L. Rev. 537, (2007) (available for free on SSRN here

he takes you through the life of a typical law professor and shows how virtually everyone breaks copyright virtually every day.

my favorite example is how a person could rack up millions in statutory penalties by replying to a few emails becuase his email client is set to reproduce the email written by the person he is replying to when he hits "reply."

You have a stilted view of rival product. Standard and common usage is, for example: Netflix offers rival products to those offered by Blockbuster; the implantable lens is a rival product to Lasik; Apple to Microsoft etc, etc.

This market phenomenon is also called "substitute products."

As Gabriel McCall noted above, "rivalry" is a term of economic term of art.

It has zero to do with specific products, in the sense that Pepsi is the "rival" of Coca-Cola.

Well currently you probably still could spend a bunch of time every day watching every youtube video ... This is a problem that is only going to get worse as more people become comfortable authoring digital content.

Not at all. All infringers become targets of opportunity. All one need do is notice an infringer, and bring down the litigation hammer. Even the RIAA doesn't sue every infringer.

In the scenario I described, any infringer would be actually running a commercial operation. They'd be much higher profile than file sharers, and therefore more easily spotted without extensive watching and searching.

Huh, I think you lost the conversation thread somewhere or I miscommunicated. I was replying to your objection to my original post.

Initially I argued that even if we could easily find rights holders the transaction costs for the rights holder in seperating those uses they wish to licensce for minimal fees and those they wish to charge heavily for will create a high minimum fee for licensing. This has nothing to do with infringement. It's all about the costs of negotiating the license with the person who wants to post the video to youtube.

My point is that even though it's in the interest of everyone involved to license derivative works like this for free or very cheaply even if it was easy to locate the rights holders it wouldn't happen. It's just too expensive to check that someone you want to charge high royalties too isn't sneaking into the group you offer cheap licenses to.

My intuition says that what is wrong is violating someone's privacy and exposing what they might find embarassing or invasive. However, if someone goes ahead and publishes my secret novel while I'm deep in the amazon there is no putting the cat back in the bag when I get back and I have no intuition that it's fundamentally wrong to keep publishing the novel in this circumstance. Indeed, my intuition says what would be wrong is to try and snatch back this material from the culture.

If you feel differently you need to do more than assert it. If you want to say something is a natural right you need to justify it.

Um, "common moral sense" wasn't offered as a basis. It was offered merely as the antecedent of the observation that followed: why it was inscripted into law. ("Position X is already commonly held, but because it's not held by everyone, it's been made law.") The "but" makes that perfectly clear.

Nothing in my post indicates that "This is common moral sense" was intended to serve as explanation. That you read it in such a way is your reading problem, not my writing problem.

DiverDan
All in all, I think what these videos show is the severe limitations of "programmed" creativity. I don't see a real threat to copyright until there are significant improvements in "programmed" creativity, at which point, considering the hours of programming work that will be necessary, the balance between work on the creative side and work on the copyright law side will get a lot closer to the historical norm.

I think that tipping point is closer than most would imagine. David Cope's program's compositions are good, in some cases really good. I can envision software designed to produce new episodes of, say, Law and Order, by absorbing the entire LO corpus and synthesizing new variations on the theme. It could even be parameterized to do things like de-emphasize the character development that has infected the show in the last few years. Given sufficient compute resources, a new episode could be created on demand by someone asking for an episode of something between "Law and Order" and "Firefly" but with the characters from "The Jeffersons" done in the visual style of Michael Gondry with David Mamet dialogue.

Songsmith's musicianship is very mechanical and its notion of "style" seems constrained to a small library, but better stuff will come along and wreak havoc with our notions of creativity, derivative works, and what counts as entertaining.

If I am Charles Dickens, you are not my "competitor" when you copy my new manuscript without my permission and distribute it of your own accord. You are, simply, a thief. (And despite my love of language as a renowned author, I will countenance none of this infernal parsing of the word "thief" with regard to IP.)

The unique expressions of MY MIND are not yours to reproduce and distribute. It is MY mind, and MY work, and MY time, and you will respect that. This is common moral sense, of course. But this is also still the real world, and the real world still has slimeballs, so this common moral sense has been codified into law to ensure that the slimeballs get the message too: A human being has exclusive rights to the fruits of his own brain. His creativity is not yours to co-opt. Period.

You, and other defenders of IP in this thread, are starting with the premise that ownership of ideas is a natural right, and arguing from that stance. Given that as a premise, your arguments make sense, but I and others here taking the opposite stance are rejecting your initial premise, and you're not offering any justification for it other than "that's obvious" and "didn't we already agree on that?"

If you take your pen and your paper and write a great novel, it's obvious that that particular physical assembly of ink patterns on paper belongs to you: You can keep it, sell it, or sell it under contract that the purchaser not do certain things with it, perhaps to involve copying it. However, it is not universally agreed that you have a right to prevent others from copying that book in the absence of an explicit contractual agreement to that effect.

The repeated bald assertion that ideas are property, that they are obviously property, that those who do not respect this assertion are thieves and slimeballs, doesn't actually accomplish anything in terms of proving anything to those who question the underlying premise. Why should ideas be considered property? If I buy a book from you, with no explicit terms of use attached to the sale, what gives you the right to dictate what I may do with the book which I own? It may seem obvious to you but if you can't explain how you got there then you can't convince anyone else.

I reject the argument that you own the unique expressions of your mind. You own such things as paper and ink. What you do with those belongings is up to you, including combining them into a novel. If I break into your house and steal your paper and ink, then yeah, come after me with the full force of law. Heck, if I break into your house and copy what's on your paper and ink, I'll grant an offense there too: what's in your house is private. But if I meet you in a marketplace and buy your paper and ink from you in a mutually agreeable transaction, then the paper and ink are mine and I may use them as I wish. If you don't agree, you have to explain why, not just assert vigorously that I'm wrong.

George Weiss:
"my favorite example of copyright law out of whack is this email example is saw in Infringement Nation: Copyright Reform and the Law/Norm Gap 2007 Utah L. Rev. 537, (2007) (available for free on SSRN here)"

Thanks for the pointer to this very entertaining paper. I suspect that as our lives get more computerized, the absurdities will be ever more evident in many areas of the law.

When the first AI capable of understanding legal writing in the context of a realistic world model is turned loose on the corpus of U.S. federal and state law w/ typical configuration settings, it will conclude that there's no way for an adult to exist legally in the U.S., and that there hasn't been since 1937 (in which year it was still possible for a Native American born in certain Nevada counties prior to 1844 who had been in a persistent vegetative state since before the age of 14 to be fully compliant, until this final haven was eliminated late in the afternoon of August 12 by the interaction of a newly enacted state law w/ two obscure existing regulations).

I practice in a mixed jurisdiction with both the common law conception of copyright and the civil law concept of moral rights. I am very sympathetic to IP rights and believe that they arise from the talent and effort of authors, composers, inventors, etc. That being said, creators of IP do themselves no favors when they call people thieves and act as if society owes them unlimited enforcement of their rights. That is, by its very nature, IP is easily reproducible and requires special government protection. In exchange for that protection, IP creators have to be willing to accept the limitations and exceptions that society imposes. If you don't want me to tell you what to do with your song and how it may be distributed, then keep it to yourself.

There is a logical leap that David Post is making here and I don't understand how he's making the leap. Why is it inherently absurd for copyright clearance to take longer (even 10x or 100x longer) than creating the new recording?

If one agrees that Marvin Gaye (or whomever) has a property right in the song and that the Songsmith stuff isn't fair use, then Prof. Post has made, at most, an argument for a better clearance system.

And if one starts out believing that Marvin Gaye shouldn't have the right to exclude others from using the song, then the requirement of clearance is objectionable whether the time factor is 10x or 1/10th. Right?

Um, "common moral sense" wasn't offered as a basis. It was offered merely as the antecedent of the observation that followed: why it was inscripted into law. ("Position X is already commonly held, but because it's not held by everyone, it's been made law.") The "but" makes that perfectly clear.

Nothing in my post indicates that "This is common moral sense" was intended to serve as explanation. That you read it in such a way is your reading problem, not my writing problem.

Then, by all means, please provide a basis for the statement: "The unique expressions of MY MIND are not yours to reproduce and distribute. It is MY mind, and MY work, and MY time, and you will respect that."

Javert's view, expressed cogently and forcefully, is probably in line with most legal practice (since, as he notes, he's an attorney practicing in the 'intellectual property' area). I think it is only fair to take his position as the majority insider position on copyright and intellectual property.

I therefore don't want to criticize his position in legal, or even constitutional terms, but rather in discursive terms. As others note, the language of the constitution makes no mention of property: what it quite clearly describes, in keeping with 18th century practice, is a government license for certain products.

What's interesting is that over 2 centuries, a license has turned into property. I'm not an attorney, but I doubt I'm running amiss if I say that copyright law is not the only place where this has happened. And the discursive move that is used to transmute a limited license into 'intellectual property' is to invoke rights.

I'm a great fan of rights, but I also know that they are not of the same ontological order as land or songs or things. They are legal fictions, important legal fictions (in the sense of being made things, but they don't exist in the world.

Additionally, I happen to know the history of the idea of 'rights', and it leads directly and unavoidably to the idea of 'privilege', and is intimately connected with the idea of 'freedom'. In late medieval and early modern European law, a 'privilege', a 'right', and a 'freedom' were largely synonymous.

A freedom was a commodified legal privilege, say to operate a mill, or to elect a town council, or to be free of appeals to higher courts. Privileges/freedoms (the words 'privilegia' in Latin, 'Freiheit' in German, and 'freedom' in English being substantially synonymous) were documentable, and they could be bought and sold (depending on their terms). Government operated largely as an 'economy of privilege', in which various chartered forms of rent-seeking were enshrined as privilege and zealously guarded.

Modern copyright law is far more accurately described as creating 'privilege' (in late medieval terms) than as a 'right' using natural rights language, as any number of commentors have already noted. It is a rent allocated and guaranteed by higher authority.

But if that's so, my question is: do we really want to be returning to a society of privilege and sanctioned rent-seeking? In particular, should libertarians be taking such a stance?

I do clearance for a living, and it's not that hard. Time-consuming for non-professionals, perhaps, but I bill by the day.

If you need Marvin Gaye's work to stimulate your own creativity, then pay him for it. It's that simple.

Music used to be something people made—sheet music sales were huge. Then, thanks to recording, music became something to consume. Now, music is something that someone creates, another consumes and a third party mashes up.

A cautionary example of the difficulties involved in obtaining clearances: release of a DVD of even one season of the television series "WKRP in Cincinatti" was held up for a long time due to seemingly trivial copyright issues.

If you need Marvin Gaye's work to stimulate your own creativity, then pay him for it. It's that simple.

I sort of feel like I'm telling you there's no Santa Claus, but Marvin Gaye has been dead for 25 years. Don't shoot the messenger.

I would take this to mean that I shouldn't have to pay anybody for Marvin Gaye's music, but I have a hunch that you and Javert will tell me I do.

Music used to be something people made—sheet music sales were huge. Then, thanks to recording, music became something to consume. Now, music is something that someone creates, another consumes and a third party mashes up.

This is such a muddle. Did recorded music stop any one from making music? Did it maybe help people make more music by exposing them to more influences? Don't plenty of people still "make" music? Why are there hundreds of websites devoted to guitar tabs?

By third party "mash ups" I assume you are referring to sampling in general - which has been going on for all time, and very prominently during the entire 20th century in jazz, as well as more recently in hip-hop.

Give me a break, Post. I realize that, as a lawyer, you think the solution to any problem ought to involve the work of lawyers and legislators (preferably both), but the real world generally works differently, and I would say it has already solved this problem without your very expensive help.

No, azz10 didn't consult a copyright lawyer. He'd be nuts to do so. He's spent a short amount of time, and what I would describe as a very modest amount of "creativity" doodling around with this song, and has put up a mild barrier to finding him by using a pseudonym. Whoever owns the copyright, if they are sensible modern 21st century people, are not going to bother him for the moment, and as long as he remains a mere 14-day YouTube sensation. At worst, they lose some very modest amount of money he could afford to pay. At best they get 500 people whose memory of the original song is refreshed, and who jump on over to Amazon.com and buy it for $1 a pop. A little bit of gravy.

It's only if azz10 turns into a long-lived, serious sensation, and starts selling what he's doing, or at least profiting from it somehow, that they're going to step in and say mmm, well, hold on a minute, we need to talk. And then, of course, there will be plenty of money at stake, enough for lawyers to feed on for a while and settle the issues.

Or they'll take action at the point when he becomes sufficiently obvious that they no longer have the excuse, if some busybody (i.e. lawyer) starts asking in the future but why didn't you defend your copyright zealously, that they didn't know about azz10's little video. Gosh, had we only known, but of course we can't monitor 10,000 videos put up on Youtube every day... Depending on how things work out -- how stupid azz10 is, for example, in drawing attention to himself before he has figure out a way to monetize what he's doing -- that could end up badly, but, well, that's the breaks. Creativity usually needs to be coupled to some business sense, or at least common sense, if it is to survive. Copyright law can't change that fact o' life.

There may be some rough edges around this solution, but so far it's working OK. Do we, instead, as a society, want to pay a bunch of logic chopper lawyers to sit around in a legislature or 50 and rework the whole machinery of copyright, making it, no doubt, given the way lawyers work, about eight times more complicated and unobvious than it was before? So that we all need to spend, going forward, even more money on copyright lawyers? Blech. I'd say no, hell no.

My goodness, so many people talking about me and no one getting my name right. For the record, it's azz100c.

No, azz10 didn't consult a copyright lawyer. He'd be nuts to do so.

I also have enough of an education in IP law that I don't need to.

He's spent a short amount of time, and what I would describe as a very modest amount of "creativity" doodling around with this song

The creativity is in the process, not the production. Indeed, I have made it a point throughout this project that I do not interfere with Microsoft Songsmith's manipulation of the source material.

and as long as he remains a mere 14-day YouTube sensation

Hey now. This sensation has been going on for more than six weeks now.

At worst, they lose some very modest amount of money he could afford to pay.

That would have to be a VERY modest amount of money. I'm a doctoral student, ABD, and not working at the moment.

At best they get 500 people whose memory of the original song is refreshed, and who jump on over to Amazon.com and buy it for $1 a pop. A little bit of gravy.

Indeed, I am making the original artists money by drawing new attention to their work.

It's only if azz10 turns into a long-lived, serious sensation, and starts selling what he's doing, or at least profiting from it somehow, that they're going to step in and say mmm, well, hold on a minute, we need to talk. And then, of course, there will be plenty of money at stake, enough for lawyers to feed on for a while and settle the issues.

I wish there were a way to make money off this -- I've had nearly 4,000,000 video views as of today -- but I'm not an idiot.

how stupid azz10 is, for example, in drawing attention to himself before he has figure out a way to monetize what he's doing

I don't know what you mean here.

Anyway, I'd never attempt to monetize any of what I do, simply because that would defuse one of the primary foundations of my fair use argument per the rather strict line drawn by AGU v. Texaco.

Also, this article doesn't highlight what I find to be easily the most intriguing or controversial aspect of this performance/project, which is my use of the original studio multitrack recordings to produce these works. Given that the copyright for the published recordings pertains to the completed performance, the argument is certainly available that as the material I use comes prior to its gestalt as a published work, holders of that copyright are not players in my game, as it were.

Consider also how I might have acquired these original studio multitrack recordings, and that I very may well have acquired them through a completely legal means, at my local video game store.

Oh, and for commenters who feel it necessary to opine on how "bad" the songs are: the point is totally going over your head.

this article doesn't highlight what I find to be easily the most intriguing or controversial aspect of this performance/project, which is my use of the original studio multitrack recordings to produce these works. Given that the copyright for the published recordings pertains to the completed performance, the argument is certainly available that as the material I use comes prior to its gestalt as a published work, holders of that copyright are not players in my game, as it were.

Consider also how I might have acquired these original studio multitrack recordings, and that I very may well have acquired them through a completely legal means, at my local video game store.

azz100c, you're absolutely right that's that's a fascinating wrinkle. I'd be curious to hear if you or anyone else here has any specific knowledge of the copyright status of studio tracks or other developmental/intermediate stages of the artistic process. I wouldn't think that they would be completely uncopyrighted, but I can easily imagine that the copyright ownership might be entirely different from the ownership of the finished work, depending on the details of production.

I can also imagine an argument that the studio tapes are not authorized for public use of any sort and that an artist has a right of privacy in his artistic process, and that the idea of fair use only applies to the finished work that the artist deliberately releases into the public view. Not saying that's the way it is, nor the way it should be, nor that this argument might apply to the specific details of your acquisition, but I can definitely conceive of this argument being made.

Now, music is something that someone creates, another consumes and a third party mashes up.

You seem to suggest that this is a bad thing, and that mash-ups are not creations themselves. Although a simple mash-up requires little or no creativity, a lot of us young'uns think Girl Talk's albums are so brilliantly creative that "mash-up" doesn't do it justice. Heck, even my mom thinks so.

Here's what goes into a single album. This sort of mash-up essentially builds new songs by modifying pieces of existing songs, yet copyright law discourages and frequently punishes creativity in this context.

This archaic, rigid attitude that stifles the creation of new works -- yes, a work comprising nothing but existing works can be new -- is just one of the many problems with copyright law.

I wouldn't think that they would be completely uncopyrighted, but I can easily imagine that the copyright ownership might be entirely different from the ownership of the finished work, depending on the details of production.

Unfortunately, I think there's a pretty straightforward answer to what seems like an interesting question. The studio tracks could be individually copyrighted because they are separately fixed in a tangible medium (recorded). I doubt, however, that a person who reproduces the final, mixed work could be forced to pay damages for infringing each work, i.e., each studio track. I hope this is for two reasons: first, the studio tracks are unlikely to be registered prior to the infringement (which is required to obtain damages); second, a court hearing such a claim should take a common sense approach and hold that only the final, mixed track was infringed.

Regardless, I don't think copyright owners would be out of the picture in a claim involving Songsmith because those studio tracks are part of the final work, which was probably registered prior to the alleged infringement. Even if it weren't, the copyright owner could register the work and enjoin its use in Songsmith.

You are, as so many do, conflating creativity with derivation. Mashups, such as these, are not creative in the same sense that the original works were creative. They are several degrees down the scale from the truly creative works which they have simply melded together. And you would sacrifice the legal protections for the original creative works in order to make the derivative works more convenient?

Automatic Caution Door: The unique expressions of MY MIND are not yours to reproduce and distribute.

This statement is far more limited than you make out. For example, under copyright law, as generally recognised, I can reproduce at least some of the unique expressions of your mind to criticise. If I want to disagree with you, I can quote you to a certain extent even if you really hate me disagreeing with you.
In fact, there's a strong public argument for being able to openly quote from people we disagree with as part of criticising them.

It is MY mind, and MY work, and MY time, and you will respect that.

Respect yes. But the word respect means very many different things to different people. I will respect your work by identifying it as belonging to you, but I won't respect your work in the sense of allowing only you to control how it is distributed.

azz10 was a professor of mine when I was an undergrad. He's quite funny, and it doesn't surprise me that his videos have gotten so popular. But I think a lot of people are looking a little too far into this-- it's a joke. Comments to the tune of "these videos are crap" make no sense, because they aren't supposed to be good. It's all for laughs-- like another commenter said, it actually highlights the limitations of Songsmith.

And you would sacrifice the legal protections for the original creative works in order to make the derivative works more convenient?

Yes, because I think that the current legal protection for the original creative works hinders creativity more than it encourages it. I am not, however, suggesting that we do away with legal protection altogether.

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